Cornfeld v. Board of Physicians

• Decision Date: 02 May 2007
• Docket Number: No. 0175 Sept. Term, 2006.,0175 Sept. Term, 2006.
• Citation: 921 A.2d 893,174 Md. App. 456
• Parties: Edward CORNFELD v. STATE BOARD OF PHYSICIANS.
• Court: Court of Special Appeals of Maryland

921 A.2d 893

174 Md. App. 456

Edward CORNFELD v. STATE BOARD OF PHYSICIANS.

No. 0175 Sept. Term, 2006.

Court of Special Appeals of Maryland.

May 2, 2007.

Lisa O'Mara Arnquist, Towson, MD, for Appellant.

Kathleen A. Ellis (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, MD, for Appellee.

Panel: ADKINS, KRAUSER, and THEODORE G. BLOOM, (Retired, Specially Assigned), JJ.

ADKINS, Judge.

State Board of Physicians (the Board) found that appellant Edward Cornfeld, M.D. (1) violated the standard of care in his treatment of a surgical patient by leaving her under anesthesia and "unattended in the operating room[,]" and (2) engaged in unprofessional conduct in the practice of medicine by misrepresenting to both a hospital peer review investigator and the Board that improper settings on the surgical instrument he used were not made to his specifications. The Board suspended Dr. Cornfeld's license to practice medicine until he satisfied certain conditions, and imposed a three year probationary period thereafter. The Circuit Court for Baltimore City affirmed the Board's order. Cornfeld appeals, raising five issues for our review, which we rephrase as follows:

I. Did the Board err in concluding that Dr. Cornfeld engaged in unprofessional conduct "in the practice of medicine" by making misrepresentations during hospital peer review and Board investigations?

II. Did the Board violate section 14-401(i) of the Medical Practice Act by failing to complete its investigation within 18 months, or to explain its delay, requiring dismissal of the complaint against Cornfeld?

III. Is the Board's conclusion that Dr. Cornfeld violated the standard of care by leaving an anesthetized patient unattended in the operating room supported by substantial evidence?

IV. Is the sanction imposed by the Board "so disproportionate to the alleged offense as to constitute arbitrary and capricious agency action"?

V. Did the administrative law judge abuse her discretion by excluding certain evidence offered by Dr. Cornfeld?

We shall hold that Dr. Cornfeld's false statements to hospital peer reviewers and Board investigators constituted "professional misconduct in the practice of medicine." Finding substantial evidence to support the Board's decision, no abuse of discretion, and no error of law, we shall affirm the judgment.

STATUTORY SCHEME GOVERNING PHYSICIAN DISCIPLINE

In Maryland, physicians are governed by the Medical Practice Act ("the Act"), codified at Md.Code (1981, 2005 Repl.Vol., 2006 Cum.Supp.), § 14-101 et seq. of the Health Occupations Article (HO). The Act is administered by the Board,¹ which has both licensing and disciplinary responsibilities. See HO § 14-205, § 14-206, § 14-313. In performing these duties, the Board has adopted regulations. See Code of Maryland Regulations ("COMAR") 10.32.02.

Under the Act, the Board has authority to discipline physicians for enumerated reasons. Section 14-404(a) identifies 40 specific bases for disciplinary action, two of which explicitly pertain to conduct committed "in the practice of medicine." Section 14-404(a)(3) permits the Board to discipline a licensee who "[i]s guilty of immoral or unprofessional conduct in the practice of medicine[.]" Section 14-404(a)(11) authorizes discipline of a physician who "[w]illfully makes or files a false report or record in the practice of medicine[.]" In addition, section 14-404(a)(22) allows disciplinary action against a licensee who "[f]ails to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care performed in [a] . . . hospital[.]"

In Md. Bd. of Physicians v. Bernstein, 167 Md.App. 714, 719-21, 894 A.2d 621 (2006), we detailed the Board's process for investigating and adjudicating complaints against physicians, and the ensuing process of judicial review.

The Act authorizes the Board to reprimand a licensed physician, place a licensee on probation, or suspend or revoke a license to practice medicine for enumerated reasons. . . . When an allegation that may constitute grounds for disciplinary action under the Act comes to the Board's attention, the Board generally initiates an investigation. HO § 14-401(a); COMAR 10.32.02.03A. If the allegation concerns the standard of care and, after an investigation, the Board elects to pursue further investigation, the Board then refers the complaint to the Medical and Chirurgical Faculty of Maryland ("Med Chi") physician peer review. HO § 14-401(c)(2); COMAR 10.32.02.03(B)(1).

The Board and Med Chi have adopted a "Peer Review Handbook" that governs the peer review process. Med Chi prepares a report addressing the allegations against the physician and submits it to the Board.

After receiving the Med Chi report, the Board determines whether reasonable cause exists to charge the physician with a failure to meet appropriate standards of care. COMAR 10.32.02.03(B)(2). If the Board files a charge, it refers the matter to an administrative prosecutor and sends notice to the physician. COMAR 10.32.02.03(C)

At that point, the physician is entitled to a contested case hearing before an administrative law judge ("ALJ"), in the Office of Administrative Hearings ("OAH"), pursuant to the Administrative Procedure Act, Md.Code (1984, 1999 Repl.Vol.), section 10-201 et seq. of the State Government Article ("SG"). HO § 14-405(a); see also COMAR 10.32.02.03(D). Following the hearing, the ALJ issues findings of fact, conclusions of law, and a proposed disposition. COMAR 10.32.02.03(E)(10). . . . Either party may file exceptions to the ALJ's findings and proposed disposition. COMAR 10.32.02.03(F).

The Board is not bound by the decision of the ALJ. After receiving the ALJ's proposed decision, the Board must review the record and the ALJ's proposal, and hold a hearing on any exceptions. COMAR 10.32.02.03(F). It then issues a final decision stating its findings of facts, conclusions of law, and a disposition of the charge. COMAR 10.32.02.03(E)(10).

The Board's final decision is subject to judicial review in the circuit court in accordance with the Administrative Procedure Act, and then to appeal to this Court. HO § 14-408(b). (Footnotes and some citations omitted.)

See also Md. Bd. of Physicians v. Elliott, 170 Md.App. 369, 907 A.2d 321 (reviewing standards for appellate review of Board decision overruling ALJ), cert. denied, 396 Md. 12, 912 A.2d 648 (2006).

FACTS AND LEGAL PROCEEDINGS

We recount the facts as they were found by the Board.² Dr. Cornfeld practices obstetrics and gynecology. On October 28, 1999, he performed a Loop Electrosurgical Excision Procedure (LEEP) on a 31 year old patient admitted to Montgomery General Hospital (MGH), in order to remove abnormal cervical tissue. The patient was placed under general anesthesia for the procedure.

The excision procedure is performed with a Bovie machine, which is a surgical instrument that heats up a fine metal wire shaped into a loop, which in turn is connected to a "Bovie pencil." The pencil and loop are inserted through the vagina to remove abnormal tissue.

Dr. Cornfeld had a card on file at MGH stating that his preference was to have the Bovie machine set at 70 for coagulation and 70 for cervical conization ("cutting") procedures such as the one he performed that day. But the operating room nurse responsible for overseeing the equipment and patient preparation that day, Sheryl Dickey, initially set the Bovie machine at 50 for both coagulation and cutting, in accordance with standard settings used in most procedures. Dr. Cornfeld instructed Ms. Dickey to change both settings to 70, and she did so.

During the procedure, Dr. Cornfeld burned the patient twice, causing a laceration of approximately 6 centimeters. He repaired this with two large Vicryl stitches.

Nurse Dickey notified a nurse supervisor who was in the operating room, Joan Fitzgerald, of the burn and sutures. After observing the burn, Fitzgerald left the operating room to consult a supervisor. When Dr. Cornfeld announced that he had concluded the procedure, Nurse Dickey asked the anesthesiologist not to wake the patient because another surgeon would be coming in to review the patient. Nurse Fitzgerald returned and advised Dr. Cornfeld that she had been instructed to have another physician check the patient before she left the operating room. Dr. Cornfeld replied, "Do what you need to do," then left the operating room. No other surgeon was in the operating room at the time. It was at least two to three minutes before Dr. Thomas Vincent arrived.

Dr. Vincent reviewed the patient, removed the sutures, and resutured the laceration with smaller sutures. After concluding the repair, Dr. Vincent located Dr. Cornfeld, explained what he had done, and asked Dr. Cornfeld what had happened. Dr. Cornfeld discussed the case with Dr. Vincent while the patient was in recovery. The patient did not suffer any severe or long-term effects from the laceration or suturing.

MGH suspended Cornfeld's hospital privileges shortly after the incident. In July 2000, in a peer review investigation by the hospital, Dr. Cornfeld stated under oath:

I don't think anybody in our department ever sets a bovie at 70 or a cautery at 70 as a starting point. I haven't heard that they did. . . . I thought it was routine that when I would come in this thing would be set at 40 or 50.

Following its investigation and peer review, the hospital revoked Dr. Cornfeld's privileges.

The Board initiated an investigation in January 2000. In February 2000, through his attorney, Dr. Cornfeld filed written and signed responses to the Board's inquiry, stating:

The nurse who operates this machine was negligent in setting the machine to a heat of seventy to eighty whereas the appropriate setting used by Dr. Cornfeld is forty. Dr. Cornfeld has performed this surgery on many occasions at [MGH] and at other hospitals. Dr. Cornfeld has standing instructions for the setting of forty, and...